Earlier this week USCIS published its final rule introducing an online pre-registration process for H-1B cap petitions and changing the order of the two lotteries for visa beneficiaries.  In reaction to USCIS’s announcement, Law360 spoke with immigration practitioners, including Mayer Brown’s Paul Virtue, about the impact of these changes on employers and the business community.  Read more at Law360.

The Department of Homeland Security (“DHS”) has posted a final rule regarding the H-1B cap selection process. The rule will be published in the Federal Register on January 31, 2019 and will go into effect on April 1, 2019.

The Final Rule

The posted rule is the final version of the proposed rule titled “Registration Requirement for Petitions Seeking to File H-1B Petitions on Behalf of Cap-Subject Aliens,” which was published for public comments on December 3, 2018.  During the 30-day comment period, the proposed rule received over 800 public comments. Continue Reading Department of Homeland Security Posts Final Rule Regarding H-1B Cap Filings

On January 25, 2019, US Citizenship and Immigration Services (USCIS) announced that the agency would reinstate premium processing for H-1B petitions filed last April under the FY 2019 annual quota (the “cap”), including those eligible for the advanced degree exemption (i.e., holders of US master’s degrees or higher). This reinstatement of premium processing is only available for pending petitions and will not apply to new submissions, as the FY 2019 cap quota has already been met.

The premium processing service permits employers to pay an additional fee of $1,410 to have an immigration benefit adjudicated within 15 days, and USCIS will return the additional fee to the employer if the benefit application is not timely adjudicated. Continue Reading USCIS to Resume Premium Processing for H-1B Cap-Subject Petitions Filed in April 2018 That Remain Pending

As the longest federal government shutdown in United States history endures, Law360 discusses how the lack of government funding has impacted the field of business immigration.  Although most business immigration processes remain largely unaffected, US Citizenship and Immigration Services, the State Department, the Department of Labor, Customs and Border Protection, and US immigration courts have all felt the strain of the shutdown.  To find out more, including Paul Virtue’s comments on the shutdown, read the article here.

Every January, employers go into high gear to prepare H-1B cap-subject petitions for filing on the first business day of April.  This year, employers must also monitor for potential regulatory changes to the filing process.  On December 3, 2018, the Department of Homeland Security (DHS) published a notice of proposed rulemaking in the Federal Register titled “Registration Requirement for Petitioners Seeking To File H-1B Petitions on Behalf of Cap-Subject Aliens.”  The 30-day public comment period closed January 2, 2019, and employers remain in wait for the impact to this year’s cap-subject filings.  While President Trump tweeted about H-1B changes that “are soon coming,” it is not clear whether they relate to the proposed rule.

The proposed rule seeks to accomplish two goals: streamline the H-1B selection and filing process by creating a pre-registration system, and increase the chances of selection for H-1B petitions eligible for the advanced degree exemption by reversing the order in which the cap lotteries are run.

US Citizenship & Immigration Services (the agency responsible for immigration benefits within DHS) received over 800 comments on the proposed regulation, including comments from the US Chamber of Commerce, the American Medical Association, and the American Immigration Lawyers Association.  The public comments criticize the proposed timeline and logistics, identify impacts stretching beyond immigration law, and suggest that the proposed rule may face court challenges if implemented:

Continue Reading Impact of Proposed H-1B Rule on Annual Cap Filings

The federal government has entered its fourth week of a partial shutdown since December 22, 2018 because of a budget impasse between Congress and the White House.  This shutdown is the longest since 1995-1996, when the federal government was closed for 21 days, and now represents the longest lapse in federal funding in recent history.

Many agencies and departments continue operations through this shutdown because of previously approved funding bills or the essential nature of their personnel.  The information below summarizes the operating status of agencies responsible for immigration-related activities most relevant to employers. Continue Reading US Government Shutdown Impact on Immigration-Related Services

As the final Brexit date approaches, EU-member state governments are putting in place specific plans for British nationals living within the EU after March 29, 2019.  Earlier this week the Dutch Immigration and Naturalisation Service (“IND”) shared a template letter it will begin sending to UK nationals legally residing in the Netherlands regarding the continuation of residence post Brexit in case there is no withdrawal agreement ratified between the UK and the EU.  Key points contained in the letter include:

In a recent Bloomberg Law article discussing what 2019 has in store on the immigration front, Liz Stern remarks on the changing landscape of business immigration as USCIS challenges and narrows the definition of the H-1B specialty occupation visa category.  Although comprehensive immigration reform is not likely, Stern anticipates more litigation as businesses become increasingly frustrated with the shift in adjudication patterns, new regulations, and changes to specific immigration categories and benefits.  For more on what’s in store in the new year, read the article.

Last week the German newspaper, Süddeutsche Zeitung, published an article detailing a preliminary draft for a new immigration law in Germany.  Although the draft is not publicly available, the newspaper revealed that the new immigration law is set to be approved by Angela Merkel’s cabinet on December 19, 2018.  According to Süddeutsche Zeitung the key aspects of the law are as follows:

  • Any foreign national who signs an employment contract and meets qualification requirements (or their equivalent) will be permitted to work in Germany.  The new draft would strip away a key requirement of the current law – no longer requiring a “priority check” of whether a German or EU citizen is available to fill the same position.
  • Skilled workers will be provided the opportunity to move to Germany for a period of six months to search for employment.  Skilled workers will be issued a residence permit that provides permission to work or to seek employment.  Applicants will be required to demonstrate sufficient knowledge of the German language, the ability to pay for the cost of living in Germany, and the attainment of “equivalence” of their qualification (e.g., academic or other credentials).
  • The draft law also contains certain provisions governing refugees, including the ability to work in Germany for two years after having completed their qualification training in Germany.

Additional details are expected to be made publicly available once the new law is approved.

According to a Financial Post article, US Customs and Border Protection (“CBP”) permanently barred a Vancouver man with ties to the marijuana industry from entering the United States on November 14, 2018.  The individual, who invests in a Canadian cannabis business, was traveling from Vancouver to Las Vegas to attend a cannabis convention and tour a marijuana facility.  According to the article, when CBP learned that the individual “was going down to tour the marijuana facility and that he was an investor in marijuana, they gave him a lifetime ban.”

Under 8 U.S.C. § 1182(a)(2)(C) of the Immigration and Nationality Act, an individual is inadmissible to the United States if they are, or have been, “an illicit trafficker in any controlled substance…or is or has been a knowing aider, abettor, assister, conspirator, or colluder with others in the illicit trafficking in any such controlled or listed substance or chemical, or endeavored to do so.”  While investors in the Canadian marijuana industry are generally admissible to the United States according to a CBP statement revised in October 2018, an individual may be determined to be inadmissible if they are traveling to the United States for reasons related to the marijuana industry.  The Government of Canada’s website reiterates CBP’s inadmissibility warning.

The media has reported news of at least one other cannabis investor receiving the same bar earlier in 2018.